Galloway v. Town of
Hartford, 2012 VT
61.
As the title says, today’s case is a three-way split
concerning the application of the law enforcement exemption to the Vermont
Public Records Act. In an unusual split,
we have a plurality opinion formed by two justices; a concurrence joined by two
more; and a lone dissenter knocking the whole decision. Lump on top of that the fact that two of the four
members making up the majority were superior court judges specially assigned to
the case, and you have a recipe for a Mexican Judicial Standoff.
So how did we end up here with a SCOV opinion that is the
legal equivalent of three gunslingers in the middle of a Confederate Graveyard?
As usual, the answer starts with an unresponsive naked man
found in the bathroom of a house.
In May 2010, the Hartford Police received a report of criminal
activity at a private residence. Three
officers responded and were met by housekeeper who reported a strange man in
the house. Guns drawn, the three went
upstairs where they met with the aforementioned naked man sitting upon the
toilet. After failing orders to show his
hands, the officers doused him with pepper-spray. When the now-blinded individual failed to
heed warnings to drop to the ground, the officers tackled him, hit him with a
baton, and cuffed and stuffed him. The
man allegedly hit back, but not with any particular effect. Still, the man resisted the officers’ orders,
and they had to drag him out of the residence.
There, in the light of day with an opportunity to confirm
his identity, the officers discovered that the man was, in fact, the Owner of
the house. Furthermore, it turns out
that the Owner had a unique medical condition where he was prone to lapse into
states of unresponsiveness.
Whoops.
Uncuffed and unstuffed, the Owner was taken to the hospital where
he was treated for minor cuts and bruises.
The police graciously declined to press charges.
Case closed.
Except that Anne Galloway, reporter and publisher of Vtdigger.org
(an on-line newspaper and notorious SCOV Law cross-poster), learned about the
incident and asked for copies of all Town’s related records. The Town denied the request based on an
exemption to the Vermont Public Records Act, which allows the police to deny a
request for records associated with a criminal investigation.
Reporter appealed the Town’s decision on the basis that the
law enforcement exemption (known as Exemption 5) did not apply because the case
was closed and no further investigation or prosecution would be following.
The trial court disagreed and after it privately reviewed
the documents through a process known as in
camera, it ruled that most of the documents were exempt from disclosure
under Exemption 5. Reporter appealed
this decision.
This tees things up for the SCOV. The plurality begins the substantive portion
of its decisions by reaffirming the standard applied to any public records
case. The law requires the courts to
apply the Act liberally and to interpret any exemptions narrowly to ensure that
the public has the widest access possible to all public records. This is pretty standard, and you would be
hard pressed to find a public records case over the past 30 years that starts any
other way—even when the SCOV ultimately upholds the exemption. Part of the reason is because the standard is
unique to the Act, and its language creates a high burden for any agency
seeking to deny a request. This must be
stated even when the exemption is upheld because each decision is intended to
apply the exemption narrowly and avoid the impression that it represents an
expansion or enlargement of what can be kept from public disclosure.
From here the plurality focuses on the question of what
happened to the Homeowner. Was it an
arrest? Or was it an investigatory
detention? The difference is important
because the latter would, arguably, give the Town some basis in denying the
request as Exemption 5 does allow a town to deny requests for records
associated with a police investigation.
Records associated with an initial arrest, however, are
public and must be disclosed under the Act as a matter of law.
To make the determination, the plurality looks to factors
from several federal cases that define the distinction between an investigatory
detention and an actual arrest. These
include the length of the detention, intensity, level of restraint, use of hand
cuffs, and amount force applied. Applying
these factors to the facts of the case leads the plurality to conclude that
this incident crossed-over to an arrest, and as such the records fall outside
the exemption and must be released to reporter.
The plurality notes in a passing footnote that most other New
England states and several other jurisdictions have similar provisions to allow
the disclosure of investigatory detention records. These statutes require the disclosure of such
records unless the police can establish a show of harm that would result. The message from the SCOV is a not-so-subtle
hint to the legislature that this issue could have been even easier to resolve
if Vermont had similar provisions that would have guaranteed disclosure
regardless of the nature of the incident.
Joining with the plurality’s reversal but writing
separately, Justice Dooley and Judge Zonay concur with the outcome but
articulate an even-more straightforward basis for the disclosure: there was no
crime. The Town arrested owner in his
own home where he was committing no crime.
The Town’s decision not to charge owner was not only fair but it was
inevitable since there was really nothing to charge. Exemption 5 is a criminal investigation exception. When no crime is committed, Exemption 5 is
not triggered.
The Concurrence touts its position as a more simple and
straightforward alternative to the plurality’s convoluted
is-it-an-arrest-or-isn’t-it analysis. Bypassing
the investigation/arrest dialectic that captures the plurality creates an
easier to apply standard and is the more efficient result. In addition, the Concurrence lists four
reasons that support this reasoning.
First, the interpretation is consistent with the charge to
read exemptions narrowly. To the extent
that one might argue that Exemption 5 covers non-criminal police work,
ambiguity is introduced, and the SCOV must rule against such a broader
interpretation of the exemption.
Second, this interpretation follows the policy interests
behind the exemption. The purpose of the
exemption is to protect the integrity of on-going criminal investigations. Where such an investigation does not exist,
there is no protection needed. Even
post-investigation factors—such as protecting the identity of informants—are a
non-factor since the government has no interest in protecting those who would
ring false alarms.
Third, the standard creates an objective test. Either it is a crime or it is not. The Concurrence believes that the legislature
would not have created an exemption that rose or fell depending on the nature
of the incident. Such a test invites
court scrutiny, litigation, and is not apparent to the average record keepers
who may not have been involved in the investigation. These are all qualities that the Public
Records Act is intended to avoid in its provisions for a quick, simple process
designed to encourage the release of documents.
Fourth, the Concurrence’s standard eschews the plurality’s
subjective analysis for something that even the man on the street could call. For the sake of clarity, the Concurrence
touts its simplicity as a virtue.
Nevertheless, the Concurrence agrees with the outcome and
joins with the plurality to form a working majority that reverses the trial court
and give reporter the documents she requested.
But this leaves room for a dissent by Justice Burgess. The focus of the dissent joins the
Concurrence in attacking the subjective standard adopted by the plurality. By importing federal court standards for “de
facto” arrests, the Dissent argues that the plurality has made everything
harder for police faced with a public records request. Police record managers must now try to parse
through an arrest to determine if the investigation or the investigatory
detention crossed the constitutional line into an arrest.
The Dissent notes that the purpose of the exemption and the
exception within the exemption for initial arrest records is to separate and
protect criminal investigations from the records generated by the actual “arrest”
of an individual leading to a criminal charge.
As the Dissent interprets the exemption the difference is
important. If a detention is made
pursuant to an investigation, the courts should not examine whether it was a “de
facto” arrest for purposes of the individual’s constitutional rights because it
does not matter. The individual has full
recourse and rights to her records and may challenge the police actions.
The exemption is not intended as a mechanism to uphold
personal rights. It is a vehicle for
public scrutiny of police and police action, and as the legislature has
articulated, this interest is balanced by the interest in protecting the investigatory
process. Therefore, the Dissent
concludes, the question here is solely whether the records related to the actual
arrest of an individual. Because they do
not, they are exempt as part of the police’s criminal investigatory process
under Exemption 5.
Since he stands alone on this conclusion, the Dissent’s
approach does not carry the day.
However, because its criticism and reasoning mirror the Concurrence’s
concern there is a substantial question about what this decision actually
decides. Only two voted to adopt the “de
facto” arrest standards of the plurality.
With the Concurrence and Dissent voting to adopt another line of reasoning,
we can say that three members—including two sitting Justices— actually voted
against this “de facto” test.
Yet, no other reasoning carries a majority of the
votes. The result is pretty much what
you expect with such a stand-off—no real winner or straightforward line of
reasoning to apply. Apart from the
dissent, it is arguable that the SCOV has not adopted any line of reasoning. That said, this opinion is chock full of good
analysis and may become valuable for parties looking to support a particularly
nuanced line of argument on this topic in the future. At any rate, the positions cover the angles
and leave little uncovered.
The real winner is reporter who gets her documents, albeit several
years after the incident. But given the
circumstances, our advice is to claim victory and print the legend.
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